Doyle v. Doyle, 3-985 / 13-0753
| Decision Date | 05 December 2013 |
| Docket Number | No. 3-985 / 13-0753,3-985 / 13-0753 |
| Parties | MELANIE L. DOYLE, Plaintiff-Appellee, v. DANIEL B. DOYLE, Defendant-Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Linn County, Marsha M. Beckelman, Judge.
The defendant appeals from the district court order extending a final protective order. REVERSED.
Karen A. Volz of Ackley, Kopecky & Kingery, Cedar Rapids, for appellant. M. Victoria Cole of M. Victoria Cole Law Firm, P.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., Mullins, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
Daniel Doyle has appealed the trial court's ruling extending for another year the protective order issued to Melanie under Iowa Code chapter 236 (2011).
Melanie Doyle filed for dissolution of the parties' marriage on November 15, 2011. Although there were two minor children born to the parties, ages three and four at the time of filing, no order relative to custody, visitation, or support was entered in the dissolution proceeding until March 20, 2012. The parties continued to reside together until January 20, 2012, when Melanie filed an independent petition for relief from domestic abuse under Iowa Code chapter 236, requesting a temporary protective order and temporary custody of the children. An ex parte order was entered granting both of her requests. A hearing on the final order of domestic abuse was set for February 3. Daniel was denied visitation until that date. The hearing on the final protective order was continued until March 20, 2012. The temporary order was modified on two occasions relative to custody and visitation prior to the hearing on the final order.
On January 27, 2012, Daniel filed an application requesting a temporary order regarding custody, support, and visitation of the minor children in the dissolution action. It was also set for hearing on March 20, and was held contemporaneous with the hearing relative to the final domestic abuse order. The issues raised by the application for a temporary order were to be based on affidavits only. Melanie's deposition was taken by David on March 8. The deposition was attached to Melanie's affidavit as a part of the proceeding in the dissolution action.
As a result of the hearing, a protective order against Daniel was entered as Melanie requested. Also as a result of the hearing, an order was entered in the pending dissolution granting the parties joint legal custody of the two children with physical custody of the children to Melanie. The order also set support and visitation, and granted Melanie occupancy of the marital residence. Unfortunately, trial of the dissolution was not set to be heard until March 25, 2014.
On March 18, 2013, Melanie requested the court to extend the chapter 236 protective order for another year and also requested that the parties be granted the right to communicate by email. After hearing, her requests were granted. It is that order entered April 16, 2013, which is the subject matter of this appeal.
Domestic abuse cases are heard in equity; therefore the court's review is de novo. Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). In equity, when considering the credibility of witnesses, the court gives weight to the fact finding of the district court, but is not bound by it. Iowa R. App. P. 6.904(3)(g).
The initial ex parte protective order in this matter was requested almost two months after the plaintiff had filed her petition requesting dissolution of the marriage. The assault upon which the final protective order was based was an incident that took place on December 25, 2011, almost one month before Melanie requested a protective order. The court's finding regarding the assault is found in the order regarding temporary matters in the pending dissolution. Thechapter 236 domestic abuse case and the dissolution traveled in tandem, and the record provided to the court contains more information from the dissolution action than the domestic abuse case.
In its ruling the district court, after indicating that the parties had been having a disagreement, stated: That is the sole act on which the protective order is based. There is no record of physical violence or threats of physical violence before or after that incident.
The request for the continuation of the protective order is based on letters, paper, and emails sent to and received by Melanie both before and after the protective order was entered. Some were from religious organizations offering to help her. The offers of help were sent after a request allegedly made by Melanie, but which she testified she never made. Some were allegedly from neighbors, in which she was referred to as "Melanoma," "a cancer on our neighborhood," a "liar" and "cheat," and exhorted her to move. These unwanted communications continued as late as October of 2012. Daniel accused Melanie of having an affair and found it necessary to tell their friends and neighbors of his suspicions. He also confronted her alleged boyfriend's family at one point and communicated his suspicions to Melanie's mother, but there was no physical violence or other assault involved. There was no threat of physical violence in any of the communications Melanie received. Melanie did consider them harassment,...
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